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European Court of Justice, March 27, 2014, C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproducktionsgesell-schaft mbH2
(Summary by Giancarlo F Frosio)3
The European Court of Justice has published a long awaited decision dealing with the legitimacy of blocking orders in PC Telekabel Wien GmbH v Constantin FilmVerleih GmbH e Wega Filmsproduktionsgesellschaft mbHblog posthere5
Preliminary the ECJ has confirmed that an access provider whose services are used to place protected subject matter online without the agreement of the rightholders must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29. Article 8(3) provides for the possibility for rightholders to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright. The ECJ, therefore, in its decision, turns to the legitimacy of these injunctions.6
First, the ECJ stated that EU law must be interpreted as not precluding a court injunction that does not specify the measures which an access provider must take to block access to a website making available copyrighted material without the rightsholders’ permission.7
Second, the ECJ concludes that blocking orders can be imposed on access providers when they can avoid incurring coercive penalties for breach of that injunction by showing that they have taken all reasonable measures. According to the ECJ, measures are deemed “reasonable” provided that8
(i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and9
(ii) they have the effect of preventing unauthorized access to copyrighted materials or, at least, of seriously discouraging internet users from accessing infringing materials.10
The ECJ observed that this arrangement should serve best the balance between (i) copyrights and related rights, (ii) the freedom to conduct a business, and (iii) the freedom of information of internet users.
November 27, 2017
Giancarlo Frosio, PhD
CEIPI, Université de Strasbourg
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